Subject: Human rights Keywords: Discrimination; Hunting; Protection of property; Right to respect for private and family life;

Scotland; Scottish Parliament Summary: A ban on mounted foxhunting with dogs was capable of being regarded as necessary in a democratic society for the protection of morals and the protection of the general interest in the prevention of cruelty to animals, and the Scottish Parliament had therefore had authority to legislate accordingly. In the instant case, the Human Rights Act 1998 Sch.1 Part I Art.8 could not be invoked because foxhunting was not an activity of private life. Abstract: A brought a petition for judicial review of the Protection of Wild Mammals (Scotland) Act 2002 , which criminalized mounted foxhunting, on the grounds that it was partly incompatible with the Human Rights Act 1998 Sch.1 Part I Art.8 and Art.14, was beyond the legislative competence of the Scottish Parliament, and was therefore ultra vires. A, a manager of foxhounds, occupied a tied house by virtue of his employment and contended that his livelihood and the house constituted possessions for the purposes of Sch.1 Part II Art.1 of the Human Rights Act. Held, dismissing the petition, that (1) the Scotland Act 1998 s.100 provided for only those who could claim to be victims to bring proceedings on the grounds of incompatibility of an Act with Convention rights, and the locus standi of such persons was to be established by reference to decisions of the ECHR. In the instant case, A was a member of a club which supported traditional hunting, but supporting an activity was not equivalent to being actively engaged in it, therefore their entitlement to bring proceedings was not established; (2) in principle, the prevention of cruelty to animals was capable of being regarded as a legitimate purpose of legislation and such issues involving moral judgment were more appropriate for decision by a democratically elected legislature than a court. In assessing the extent to which the court would defer to the Scottish Parliament in this respect it was necessary to consider the "discretionary area of judgment" identified in R. v DPP Ex p. Kebeline [2000] 2 A.C. 326 and Brown v Stott [2003] 1 A.C. 681 , Kebilene and Brown considered; (3) mounted foxhunting with dogs did not amount to an activity of private life for the purposes of Art.8 of the Human Rights Act; (4) the 2002 Act operated to "control the use of property" within the meaning of Sch.1 Part II Art.1 of the Human Rights Act in the sense that A's opportunity to make a living had been affected. However, it was open to Parliament to strike a balance between the desirability of controlling the use of property and upholding the general interest in preventing cruelty to animals without paying compensation, Pinnacle Meat Processors Co v United Kingdom (1999) 27 E.H.R.R. CD217 and Slough v United Kingdom (Unreported, September 26, 2000) considered, and (5) no breach of Art.14 of the Human Rights Act had been made out as A had been unable to establish that there had been discrimination against him in the enjoyment of his Convention rights without objective justification. Judge: Lord Nimmo Smith Counsel: For A: Paul Cullen Q.C. and David Johnston. For the Advocate General: Colin Tyre Q.C. For the Lord Advocate: Gerard Moynihan Q.C. and James Wolffe. Solicitor: For A: Balfour & Manson (for Levy & McRae). For the Advocate General: Solicitor to the Advocate General. For the Lord Advocate: Solicitor to the Scottish Executive.